[Document  110  —  1879.] 


CITY  OF  MR  BOSTON. 


COMMUNICATIONS 


RELATING    TO 


INTRAMURAL  INTERMENTS. 


In  Common  Council,  November  6,  1879. 

The  Joint  Special  Committee  on  Intramural  Interments 
beg  leave  to  submit  herewith  several  communications  relat- 
ing to  the  closing  of  the  Granary  and  King's  Chapel  Burying- 
grounds. 

As  these  communications  have  a  special  bearing  upon  the 
right  of  the  City  Council  to  close  the  ground  under  the 
present  statute,  and  the  extent  to  which  the  city  would  be 
liable  in  case  of  an  adverse  decision  upon  an  appeal  to  a 
jury,  the  committee  deem  it  proper  that  they  should  be  pre- 
sented, for  the  information  of  the  City  Council. 
Respectfully  submitted, 

JOSEPH  A.  TUCKER, 
JOSIAH  S.  ROBINSON, 
GEORGE  T.  PERKINS, 
JAMES  J.  BARRY, 
GEORGE  H.  WYMAN. 


Opinion  of  Hon.  James  M.  Keith. 

Boston,  Oct.  21,  1879. 
W.  H.  Whitmore,  Esq.  :  — 

Dear  Sir, — I  have  your  note  of- the  17th  inst.,  in  which 
you  say  that  "in  the  debate  on  the  matter  of  closing  tombs, 


2  City  Document  No.   110. 

all  the  opponents  took  this  ground,  —  first,  that  the  General 
Statutes,  Chap.  28,  Sect.  10,  says  that  if  the  jur}'  find  that 
the  tomb  was  not  a  nuisance,  the  order  must  be  rescinded  ; 
second,  that  your  Board  states  these  tombs  not  to  be  a 
nuisance  ;"  and  you  ask  my  opinion  and  that  of  the  Board  in 
relation  to  the  law  and  facts  touching  the  subject-matter. 

I  may  say,  in  the  outset,  that  the  Board  has  not  made  any 
such  statement  as  that  embodied  in  the  second  head  above 
quoted  ;  and  how  anyone  could  have  drawn  any  such  inference 
from  the  testimony  of  members  of  the  Board,  imperfectly 
reported  on  pages  43,  44,  and  46  of  the  appendix  to  the  com- 
mittee's report,  is  beyond  my  comprehension.  There  ap- 
pears to  have  been  a  total  misapprehension  both  of  the  law 
and  facts  under  which  the  Board  acted  in  its  recommenda- 
tion that  these  tombs  be  closed  to  future  interment. 

The  action  of  the  Board  was  under  Sects.  1  and  2  of  Chap. 
182  of  the  Acts  of  1877,  and  not  under  Chap.  28  of  the 
General  Statutes.  The  issue  raised,  therefore,  and  the  one 
to  be  tried,  is  the  one  raised  by  the  statute  of  1877,  and  not 
the  one  specifically  described  in  the  General  Statutes. 

This  new  statute,  as  it  appears  to  me,  materially  changed 
the  law  governing  the  closing  of  tombs  to  future  burials. 

It  does  not  contemplate  that  the  Board  shall  wait  until  a 
pestilence  shall  have  arisen  from  the  accumulated  mass  of 
human  putrefaction  buried  in  our  midst ;  but  contemplates 
the  action  of  the  Board  whenever  it  perceives  that  burials 
have  gone  to  that  extent  that  the  further  continuance  of  them 
will  necessarily  be  prejudicial  to  the  public  health.  In  other 
words,  its  object  was  to  prevent  the  use  of  tombs  in  a  manner 
prejudicial  to  the  public  health.  Under  this  statute  the 
Board  of  Health  reports,  in  its  judgment,  the  public  health 
requires  that  future  interments  in  these  tombs  should  be 
prohibited.  The  notice  given  to  the  owners  is,  to  show 
cause  why  the  report  of  the  Board  of  Health  should  not  be 
accepted  and  the  tombs  closed. 

The  action  of  the  City  Council  will  necessarily  be  to  accept 
or  reject  the  report  of  the  Board  of  Health  ;  and,  in  case  of  its 
acceptance,  to  order  the  tombs  closed.  The  fifth  section  of 
the  law  gives  the  party  aggrieved  by  the  action  of  the  Board 
or  Council  the  right  Of  appeal  in  the  manner  provided  by 
Sections  9  and  10  of  Chapter  23  of  the  General  Statutes. 
That  is,  the  aggrieved  party  has  six  months  in  which  to  claim 
his  appeal,  and  upon  giving  the  notices  required  has  a  right 
of  trial  by  jury.  But  to  try  what?  Why,  clearly  to  try  the 
issue  raised  under  the  act  of  1877,  to  wit,  the  adjudication  of 
the  Board,  that  "the  public  health  requires  that  future  inter- 
ments in  these  tombs  shall  be  prohibited." 


Intramural   Interments.  3 

Now,  was  that  adjudication  correct,  and  should  it  be  ap- 
proved or  rejected  ? 

That  is  the  question  in  issue  for  discussion.  It  is  a  well- 
known  fact,  that  as  early  as  1795,  when  Boston  had  a  popu- 
lation of  less  than  twenty  thousand,  the  selectmen  of  the 
town,  acting  as  a  Board  of  Health,  prohibited,  as  a  health 
measure,  further  burials  in  graves  in  these  two  burial- 
grounds.  Burials  in  the  tombs  have  continued  to  the 
present  time.  The  very  able  and  exhaustive  citation  of 
authorities  as  to  the  effect  of  intramural  burials,  embraced 
in  the  report  of  the  joint  committee  on  that  subject,  renders 
it  wholly  unnecessary  for  me  to  pursue  farther  that  inquiry. 
They  show  conclusively  that  the  decomposition  of  human 
bodies  sets  free  most  active  poisonous  gases  and  effluvia, 
highly  detrimental  to  the  public  health. 

Sanitarians  agree  in  the  declaration  that  burials  in  the 
ground  are  far  less  injurious  than  in  tombs ;  because  the 
earth,  if  not  already  saturated,  will  absorb  the  gases  evolved 
in  decomposition,  while  the  cracks  and  crevices  of  the  tombs 
afford  a  free  escape  into  the  atmosphere.  The  dilapidated 
condition  of  many  of  the  tombs  in  question  is  a  matter  of 
common  notoriety,  and  has  been  a  subject  of  complaint  for 
years.  But  it  is  said  some  of  them  are  in  fair  and  some  in  good 
condition,  and  that  the  owners  are  ready  to  keep  them  so. 
What  of  it?  Does  it  follow  that  these  tombs  should  continue 
to  be  used  as  places  of  interment?     By  no  means. 

First.  Because  the  grounds  in  which  they  are  placed,  and 
the  earth  by  which  they  are  partly  covered,  are  already  com- 
pletely permeated  and  saturated  with  the  gases  generated  by 
decomposition,  until  the  earth  can  absorb  no  more.  It  is  a 
law  of  physics  that  two  bodies  cannot  occupy  the  same  place 
at  the  same  time.  When,  therefore,  a  body  is  placed  in  one 
of  these  tombs,  as  the  air,  bodies,  and  coffins  already  placed 
there  till  the  interior  of  the  tomb,  the  gases  evolved  in  the 
putrefaction  of  this  new  body  must  of  necessity  escape  into 
and  contaminate  the  surrounding  atmosphere.  It  is  this  use 
of  the  tombs,  and  not  the  tombs  themselves,  that  is  prejudi- 
cial to  the  public  health. 

A  tomb  that  has  not  been  used  for  fifty  years  for  burial 
purposes  may  not  be  of  itself  prejudicial  to  the  public 
health,  but  opening  it  and  its  use  for  such  purpose  would 
make  it  so  ;  and  it  is  that  use  in  the  future  which  is  sought 
to  be  guarded  against. 

Second.  These  tombs  should  not  be  used  for  burial  pur- 
poses because  they  are  in  the  midst  of  a  dense  population, 
which  must  breathe  the  air  thus  vitiated  by  them,  and  be 
injured   more   or  less,   in  proportion  to  the  constancy  and 


4  City  Document  No.  110. 

amount  of  such  inhalation.  One  of  these  grounds,  as  you 
know,  is  bounded  on  three  sides  by  dwelling-houses,  some 
of  which  are  in  actual  contact  with  the  tombs,  and  all  are 
within  a  few  feet  of  them.  The  other  ground  is  bounded  on 
two  sides  by  the  Probate  Court,  the  Kegistry  of  Deeds,  and 
the  City  Hall,  all  of  which  buildings  are  constantly  occupied 
by  the  city  officials  during  the  day,  and  are  resorted  to  by 
thrones  of  people  having  business  to  transact  there. 

It  is  hard  to  conceive,  therefore,  of  a  more  unsuitable 
place  for  burial  than  these  grounds,  or  one  where  the  conse- 
quences of  such  burials  would  be  more  detrimental  to  the 
public  health. 

But  it  is  said  many  people  testified  that  they  had  not  per- 
ceived the  escape  of  any  deleterious  gases  from  these  tombs, 
nor  felt  any  injurious  effects  arising  from  their  present  use. 
What  of  it? 

So,  too,  scores  of  families  discover  no  sewer  gases  in 
their  houses,  and  are  offended  at  even  the  suggestion  that 
their  houses  are  in  a  non-sanitary  condition,  until  perhaps 
scarlet  fever  or  diphtheria  carries  away  a  loved  child,  when 
their  physician  points  to  their  defective  drainage  as  the  sure 
cause  of  their  bereavement. 

But  if  there  are  many  who  are  not  conscious  of  having 
suffered  from  the  injurious  gases  issuing  from  these  tombs, 
there  are  others  who  are  conscious  of  having  suffered  from 
them  often  and  acutely.  The  Board  did  not  need  to  call 
witnesses  from  a  distance  to  theorize  or  testify  on  this  sub- 
ject ;  it  was  surrounded  with  living  examples  of  the  effects 
of  the  emanations  from  these  tombs.  For  three  years  it  had 
occupied,  against  its  oft-repeated  remonstrance,  an  office  in 
the  City  Hall,  below  the  level  of  the  surface  of  the  adjoining 
burial-ground,  and  within  a  few  feet  of  these  tombs,  the  sick- 
ening odors  from  which  tilled  its  rooms.  Every  member  of 
the  Bonrd,  and  many  of  its  employes,  as  well  as  others 
under  their  observation,  had  been  made  sick  by  these  gases. 
The  foul  smell  produced  by  them  was  a  common  subject  of 
remark  and  complaint  by  those  visiting  the  office  on  business. 
The  Board  would  have  deemed  it  a  cruelty  to  have  permitted 
a  poor  family  to  have  occupied  such  a  place  as  a  tenement, 
and  would  have  ordered  such  a  family  to  vacate  it  forthwith. 
When  therefore  the  Board  adjudicated  that  the  public  health 
required  that  these  tombs  should  be  closed  to  further  burials, 
it  did  not  act  merely  upon  the  theory  that  all  such  burials  in 
populous  places  must  be,  according  to  all  sanitary  laws  and 
experiences,  prejudicial  to  the  public  health,  but  it  had 
actual  knowledge  that  such  burials  then  were  prejudicial  to 
the  public  health;  and,  as  like  causes  produce  like  results, 


Intramural  Interments.  5 

they  could  not  fail  to  be  prejudicial  to  the  public  health  in 
the  future. 

I  have  already  spoken  of  the  unsuitable  location  of  these 
tombs  as  places  of  burial.  One  would  certainly  expect  that 
the  city  would  demand  that  the  atmosphere  around  its  City 
Hall,  erected  at  so  great  a  cost,  should  be  free  from  poison- 
ous gases  and  the  effluvia  of  putrefaction  ;  that  its  officials 
should  be  able  to  occupy  the  offices  in  it  without  danger  to 
their  lives  or  health.  Would  not  the  Board,  with  the  ex- 
perience just  recited,  have  been  derelict  in  the  discharge  of 
its  duty  had  it  failed  to  recommend  the  closing  of  these 
tombs  to  further  burials? 

Objection  has  been  made  to  the  adoption  of  the  recom- 
mendation of  the  Board,  to  close  these  tombs  to  further 
burials,  on  account  of  the  eminent  fame  of  those  whose  re- 
mains repose  in  them ;  and  it  has  been  asserted  or  insinuated 
that  a  desecration  of  their  resting-place  was  contemplated. 

Nothing  could  have  been  suggested  farther  from  the 
thoughts  or  purposes  of  this  Board.  It  fails  to  see  how  a 
discontinuance  of  burials  there,  accompanied  by  a  careful 
preservation  of  existing  monuments,  the  cultivation  of  flowers 
and  a  constant  supervision  of  the  grounds,  can  be  deemed  a 
desecration.  The  action  of  the  Board  has  been  purely  upon 
sanitary  grounds,  and  for  the  protection  of  the  public  health. 
In  guarding  this,  it  could  not  be  influenced  by  the  considera- 
tion of  the  station  in  life  of  those  whose  remains  lie  in  these 
tombs.  The  physical  laws  of  decay  act  upon  all  alike  without 
regard  to  station,  sex,  or  condition.  Dives  in  decomposition 
is  no  sweeter  than  Lazarus,  and  the  one  is  as  prejudicial  to 
the  public  health  as  the  other. 

I  have  thus  given,  as  well  as  I  could  in  the  time  at  my 
command,  a  brief  statement  of  the  views  of  the  Board 
both  as  to  the  law  and  facts  touching  the  subject-matter 
inquired  of. 

Trusting  that  the  action  of  the  City  Council  in  relation  to 
these  tombs  will  be  as  sagacious  as  that  of  the  Government 
of  1795,  before  referred  to, 

I  remain, 

Very  truly  yours, 

JAMES   M.   KEITH. 


6  City  Document  No.  110. 

Opinion  of  Hon.  John  P.  Healy. 

City  Solicitor's  Office, 
2  Pemberton  Square,  Boston,  Oct.  23,  1879. 

Messrs.  G.  T.  Perkins  and  J.  J.  Barry  :  — 

Gentlemen,  —  In  reply  to  your  communication  I  have  to 
say  that,  in  my  opinion,  on  appeal  by  a  tomb-owner  from  an 
order  of  the  City  Council  that  his  tomb  be  closed,  the  9th 
and  10th  Sections  of  the  28th  Chapter  of  the  General  Stat- 
utes are  applicable,  and  that  the  trial  of  the  appeal  must  be 
in  accordance  with  their  provisions.  The  10th  section  pro- 
vides, that  if  the  jury  find  that  the  tomb  was  not  a  nuisance, 
nor  injurious  to  the  public  health,  at  the  time  of  the  order, 
the  court  shall  rescind  the  order,  etc.  The  issue  to  be  tried 
by  the  jury  must  be  this  question. 

Yours,  very  respectfully, 

J.  P.  HEALY. 


Opinion  of  Hon.  Clement  Hugh  Hill. 

Boston,  Oct.  30,  1879. 

My  dear  Sir  :  —  I  am  perfectly  willing  to  say  to  you  in 
writing  wrhat  I  told  you  orally  the  other  day,  about  my  con- 
struction of  the  statute  of  1877  providing  for  closing  tombs 
in  cities  ;  although  the  man  who  drafts  a  statute  is  prover- 
bially a  bad  authority  as  to  its  meaning,  and  although  I  speak 
with  some  hesitation  when  I  learn  that  very  distinguished 
counsel  hold  a  different  opinion. 

A  draft  of  a  bill  on  this  subject  was  submitted  to  the 
Judiciary  Committee  of  the  House  in  1877,  which,  not  being 
satisfactory,  was  laid  aside,  and  I  drafted  and  submitted  to 
the  committee  the  present  statute,  including  Section  5,  giving 
an  appeal  to  a  jury.  In  giving  this  right,  our  intention, 
according  to  the  best  of  my  recollection,  was  not  to  change 
the  issue,  but  merely  to  give  a  right  of  appeal  to  a  jury 
upon  the  same  question  as  that  on  which  the  Board  of  Health 
and  City  Council,  as  provided  in  Section  1,  had  passed, 
namely,  whether  the  public  health  required  that  future  in- 
terments should  be  forbidden  in  any  tomb  or  tombs  within 
the  city  limits  ;  and  the  provision  of  Section  5,  that  any 
person  aggrieved  by  the  action  of  the  city,  under  this  act, 
"  may  appeal  therefrom  in  the  manner  provided  by  Sections 
9  and  10  of  Chapter  28   of  the  General  Statutes,"  merely 


Intramural  Interments.  7 

indicates  the  manner  of  appeal,  and  in  no  wise  changes  the 
issue.  Otherwise,  it  seems  to  me,  any  person  may  com- 
pletely nullify  the  action  of  the  City  Council  by  simply  ap- 
pealing from  it ;  for  although  the  action  of  the  Board  of 
Health  and  City  Council  may  have  been  perfectly  proper 
and  wise,  and  the  public  health  require  that  future  inter- 
ments in  any  tomb  should  be  forbidden,  nevertheless,  the 
owner  by  appealing  may  prevent  the  closing  of  the  tomb, 
not  by  showing  that  the  Board  of  Health  and  City  Council 
decided  erroneously  in  their  adjudication,  but  by  showing 
that  the  tomb  "  was  not  a  nuisance  nor  injurious  to  the  public 
health  at  the  time  of  the  order,"  —  a  fact  perfectly  consistent 
with  the  (loci s ion  appealed  from. 

It  is  apparent,  for  example,  that  tombs  under  a  church 
may  be  innocuous  in  their  existing  state,  and  yet  the  public 
health  may  loudly  demand  that  interments  in  them  should 
cease ;  and  it  was  our  purpose  to  provide  a  means  of  so 
doing. 

This  was  certainly  my  intention,  and,  I  believe,  the  inten- 
tion of  the  committee. 

Whether  it  is  a  proper  construction  of  the  statute  is,  I  am 
aware,  another  question.  But  construing  as  we  ought  Sec- 
tion 1  of  the  Statutes  of  1877  and  Section  10  of  Chapter  28 
of  the  General  Statutes  together,  their  legal  effect,  in  my 
judgment,  is  to  add  a  new  issue  for  a  jury  for  cases  arising 
under  this  statute,  namely,  whether  the  public  health  re- 
quires that  future  interments  in  any  tomb  should  be  forbid- 
den.  Thus  construed  the  two  statutes  are  entirely  consistent. 

Very  faithfully  yours, 

C.    II.  HILL. 


Opinion  of  Robert  D.  Smith,  Esq. 

Boston,  Oct.  28,  1879. 
Wm.  H.  Whitmore,  Esq.  :  — 

Dear  Sir, — I  have  considered  Chapter  182  of  Acts  of 
1877,  and  am  of  the  opinion  that  the  appeal  provided  in  Sec- 
tion 5  is  to  be  tried  in  the  "manner"  prescribed  in  General 
Statutes,  Chapter  28,  Section  10,  but  that  the  issue  to  be  tried 
is  the  one  raised  by  the  later  act.  This  issue  is  whether  or  not 
the  "  public  health  requires  "  the  prohibition  of  future  inter- 
ments in  the  tomb  owned  by  the  appellant,  or  in  any 
cemetery. 

The  clause  in  the  General  Statutes,  Chapter  28,  Section  10, 


8  City  Document  No.   110. 

provides  for  the  trial  of  an  appeal,  and  "if  the  jury  find  that 
the  tomb,  burial-ground,  or  cemetery,  so  closed  was  not  a 
nuisance  nor  injurious  to  public  health  at  the  time  of  the  order, 
the  Court  shall  rescind  the  order,"  etc.  The  latter  clause, 
"nor  injurious  to  public  health,"  is  not  equivalent  to  the 
former  clause,  "not  a  nuisance;"  but  if  the  question  under 
the  later  act  was  simply  whether  the  tomb  were  a  nuisance 
or  injurious  to  public  health  at  the  time  of  passing  the  order, 
Section  1  of  the  Statutes  of  1877  would  be  without  force, 
and  could  confer  no  power  to  prohibit  future  interments 
because  required  by  public  health. 

I  think  that  the  jury  must  pass  on  the  question  raised  by 
the  new  law,  and  not  on  the  question  of  a  technical  nuisance, 
nor  whether  the  tomb  is  injurious  to  public  health  at  the 
time  of  order ;  and  of  course  the  new  issue  is  much  broader 
than  the  former  one  would  be.  I  presume  a  jury  would  not 
be  ready  to  differ  from  the  views  of  a  Board  of  Health  on 
what  was  prejudicial  to  public  health. 

Respectfully, 

R.    D.    SMITH. 


Extract  from  General  Statutes. 

The  following  is  the  section  of  General  Statutes,  Chapter 
43,  Section  89,  referred  to  in  the  sixth  section  of  the  Act  of 
1877,  in  regard  to  prohibiting  future  interments  in  tombs  :  — 

"  No  highway  or  town-way  shall  be  laid  out  or  constructed 
in,  upon,  or  through,  an  enclosure  used  or  appropriated  for 
the  burial  of  the  dead,  unless  authority  to  that  effect  is 
specially  granted  by  law,  or  the  consent  of  the  inhabitants 
of  the  town  where  such  enclosure  is  situated  is  first  ob- 
tained." 


Opinion  of  Hon.  John  P.  Healy. 

City  Solicitor's  Office, 
2  Pembehton  Square,  Boston,  Oct.  22,  1879. 

William  H.   Whitmore,  Esq.  :  — 

Dear  Sir,  —  I  cannot  answer  with  definiteness  your 
question  as  to  the  probable  amount  of  costs  that  would  be 
recovered  against  the  city  in  case  a  tomb  should  be  ordered 


Intramural  Interments.  9 

to  be  closed  under  the  authority  given  in  the  General  Stat- 
utes, Chap.  28,  and  the  owner  should  appeal  from  the  order 
as  provided  in  the  same  chapter,  and  the  order  should  be 
rescinded.  The  case  on  the  appeal  might  be  finally  deter- 
mined in  the  Superior  Court,  or  questions  of  law  might  be 
reserved  for  the  Supreme  Court,  and  the  amount  of  costs 
would  be  affected  by  the  determination  of  this  fact.  The 
amount  would  also  be  affected  by  the  number  of  witnesses 
used ,  and  the  number  of  days  they  should  be  detained  in 
court.  Exclusive  of  the  fees  of  witnesses,  the  probability  is 
that  the  costs  would  not  exceed  filty  dollars  in  one  case. 
Each  witness  would  be  entitled  to  one  dollar  and  fifty  cents 
for  each  day's  attendance. 

I  am,  very  respectfully, 

Your  obedient  servant, 

J.  P.  HEALY. 


DATE  DUE 

Q95 

1                       Q 

I  o 

I  jy  i 

JUN    16 

CAYLORO 

MINTEOINUI  A. 

^H 


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BOSTON  COLLEGE 


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■ 


F 

73.61 
.G7 
B75 


BOSTON, 


Bapst  Library 

Boston  College 
Chestnut  Hill,  Mass.  02167 


